08bd140.htm

Bills Digest no. 140 2007–08

Evidence Amendment Bill 2008

WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.

This Bill proposes
amendments to the Evidence Act 1995 to implement the
majority of the recommendations made by the Australian Law Reform
Commission, NSW Law Reform Commission, and Victorian Law Reform
Commission (the Commissions) as a result of their inquiry into the
uniform Evidence Acts.

Schedule 3 is unrelated to the main purpose of
the Bill. It amends the Amendments Incorporation Act 1905,
renaming it the Acts Publication Act 1905 and providing
for certain printed and electronic versions of Acts to be taken as
an accurate record of those Acts.

The rules of evidence applied in Australian
courts serve a number of functions they regulate what material a
court may consider in determining factual issues; how that material
is to be presented in the court; and how the court actually goes
about the task of deciding the factual issues on the basis of
evidence. They are a central part of procedural justice.[2]

Until the enactment of the Evidence Act
1995 (Cth) and its New South Wales counterpart, the rules of
evidence were largely part of the common law, the product of long
historical development by the courts themselves, with only limited
statutory modification. As a result they reflected a variety of
principles and values; they lacked coherence and structure; and
they were complex, technical and difficult to find. Substantial
reform was long overdue.

In 1979 the federal Government gave a
reference to the Australian Law Reform Commission (ALRC) to inquire
into the possibility of comprehensive rationalisation and reform of
the law of evidence.

The ALRC produced a series of research reports
and discussion papers; an Interim Report, Evidence (ALRC
26) including draft legislation in 1985; and a final report,
Evidence (ALRC
38) in 1987, which also contained draft legislation.

In 1991, the Commonwealth and New South Wales
governments each introduced legislation substantially based on but
differing in some respects from the ALRC s draft legislation. In
the same year, the Standing Committee of Attorneys-General gave
in-principle support to a uniform legislative scheme throughout
Australia.

The Commonwealth and New South Wales
parliaments each passed an Evidence Bill in 1993 to come into
effect from 1 January 1995. The Acts were in most respects
identical and are often described as the uniform Evidence Acts
.

The Evidence Act 1995 (Cth) applies
in federal courts and, by agreement, in courts in the Australian
Capital Territory. The Evidence Act 1995 (NSW) applies in
proceedings, federal or state, before New South Wales courts and
some tribunals.

In 2001, Tasmania passed legislation that
essentially mirrors the Commonwealth and New South Wales Acts,
although there are some differences. In 2004, Norfolk Island passed
legislation that essentially mirrors the Evidence Act 1995
(NSW).

No other state has yet adopted similar
legislation, although there is a strong movement towards the
harmonisation of evidence laws in other states based on the uniform
Evidence Act.[3]

The final report, Uniform Evidence Law
(ALRC 102), completed jointly by the ALRC, NSWLRC and VLRC, was
submitted to the Australian, New South Wales and Victorian
Attorneys-General on 5 December 2005. It was tabled in the
Commonwealth and Victorian parliaments, and released in NSW, on 8
February 2006. Throughout the Digest, this final report is referred
to as the Report and its various recommendations are described as
Recommendation followed by the relevant number.

The primary objectives of this inquiry were twofold: to identify
and address any defects in the uniform Evidence Acts; and to
maintain and further the harmonisation of the laws of evidence
throughout Australia.

The inquiry concluded that the uniform Evidence Acts were
working well, and that there were no major structural problems with
the legislation, or with the underlying policy of the Acts.

While areas of concern were identified and addressed in the
report, the Commissions concluded that a major overhaul of the
uniform Evidence Acts was neither warranted nor desirable.

The Report contains numerous recommendations
with accompanying model evidence provisions. The model evidence
provisions were developed by a working group of the Standing
Committee of Attorneys-General (SCAG) and endorsed by SCAG in July
2007.

The New South Wales Parliament has already
passed legislation that will implement these provisions.[4] It is understood a number
of other states are preparing legislation to implement the
provisions.[5]

The Explanatory Memorandum states that this
Bill implements the majority of the model evidence provisions, but
does not include the provisions implementing a general confidential
relationships privilege or the provisions extending client legal
privilege and public interest immunity to pre-trial proceedings.
The rationale for the exclusion is that the Government is still
considering its response to some of the Commissions recommendations
relating to client legal privilege claims in federal
investigations.[6]

Chapter 3 Admissibility of Evidence (containing Parts relating
to the relevance rule, various exclusionary rules and discretions
to exclude evidence)

Chapter 4 Proof

Chapter 5 Miscellaneous

This order is consistent with the intentions
of the ALRC 1985 Report that the provisions should follow the order
in which evidentiary issues ordinarily arise in a typical trial,
from the moment that the first witness gets in the witness box to
the determination of factual questions on the admissible evidence
by the tribunal of fact (judge or jury) at the end of the
trial.

The Evidence Act is not a restatement in
statutory form of common law and existing statutory rules of
evidence. Significant reforms have been introduced. For example the
hearsay rule is substantially modified in both civil and criminal
proceedings and there is reform of the rules governing the
admissibility of documentary evidence including the abolition of
the document rule.[7]

The bulk of the Evidence Act (Chapter 3) is
taken up with the rules relating to the admissibility of evidence.
The Act adopts the same basic structure as the common law for
determining the admissibility of evidence: the test of relevance is
the threshold consideration; the exclusionary rules and their
exceptions are then applied and finally, the residual discretions
to exclude on a policy ground are then applied.

To assist in applying the rules of
admissibility, the Evidence Act includes a flow chart immediately
preceding section 55.

Explanation of these principles is provided where relevant under
the Main Provisions section of the Digest.[8]

The categories of competence and
compellability are important in the laws of evidence as they define
who is able to give evidence (i.e. who is competent), and who can
be legally required to give evidence (i.e. who is compellable). The
general principle (enshrined in section 12) is that everyone is
competent to give evidence and may be compelled to do so. The
exceptions to this principle are set out in the subsequent sections
of the Act.

Section 13 provides that certain persons lack
the capacity to give sworn evidence, although they may give unsworn
evidence in certain circumstances. Subsection 13(1) provides the
test for giving sworn evidence is an understanding of the
obligation to give truthful evidence. Subsection 13(2) provides a
test for competence to give unsworn evidence, which is to be
applied where a witness fails to meet the competence test for sworn
evidence. One of the criteria is that the person understands the
difference between a truth and a lie.

The Commissions Report states that recent law
reform work and academic consideration question the formulation of
the existing competence test on the basis that:

the tests to give sworn and unsworn evidence are too
restrictive, with the risk that evidence of probative value will be
excluded

the appropriateness of the requirement in the competence test
to give unsworn evidence that a person understands the difference
between the truth and a lie are questionable

the tests of competence to give sworn and unsworn evidence are
too similar and pose difficulties for practice application.[10]

The Commissions favoured a more liberal approach
to the laws of competence and concluded that this could be achieved
by introducing a test of general competence to give sworn and
unsworn evidence and by distinguishing better the test of
competence to give sworn and unsworn evidence so that they are
sufficiently different.

Item 3 repeals and replaces
existing section 13 and sets out a new test for determining
competence to give sworn and unsworn evidence. It implements
Recommendations 4-1 and 4-2. Proposed section 13
provides that all witnesses must satisfy the test of
general competence in subsection 13(1). The revised test provides
that a person is not competent to give sworn or
unsworn evidence about a fact if the person lacks the capacity
to understand, or to give an answer that can be understood, to a
question about the fact, and that incapacity cannot be overcome.
Proposed subsection 13(3) provides that a person
is not competent to give sworn evidence if he or she does
not have the capacity to understand that he or she is under an
obligation to give truthful evidence. This is a restatement of
existing subsection 13(1). Proposed subsection
13(5) provides that if a person is not competent to give
sworn evidence, then he or she may be able to give unsworn evidence
providing the court has told the person:

that it is important to tell the truth

that he or she should inform the court if asked a question to
which he or she does not know, or cannot remember the answer,
and

that he or she should agree to statements believed to be true
and should not feel pressured into agreeing with any statements
that are believed to be untrue.

Proposed subsection 13(8)
provides that in informing itself of the competence of a witness,
the court is entitled to draw on an expert opinion.

Items 4 and 9
are consequential resulting from the amendments to section 13.

Items 5 to 8 change the
definition of de facto spouse in two sections of the Evidence Act
which

provide for certain exemptions to witnesses who could otherwise
be compelled to give evidence (section 18) and

regulate the commentary that can be made on a decision of such
witnesses not to give evidence (section 20).

Currently a defendant s spouse or de facto
spouse, a parent or a child of the defendant are included in the
protected witness category.

The changes propose that the current provision
s references to a de facto spouse be broadened to refer to a de
facto partner , which is in turn defined in the Dictionary.[11] The definition is
quite broad and specifies the criteria that should be used by the
court when determining whether someone qualifies as a de facto
partner (with no necessary emphasis to be made on any one
factor):

(a) the
duration of the relationship;

(b) the
nature and extent of their common residence;

(c) the
degree of financial dependence or interdependence, and any
arrangements for financial support, between them;

(d) the
ownership, use and acquisition of their property;

(e) the
degree of mutual commitment to a shared life;

(f) the
care and support of children;

(g) the
reputation and public aspects of the relationship.

The definition also specifies in
proposed subclause 5 that whether someone is of
the same or of opposite sex is irrelevant to the conclusion, as is
the question as to whether either of the people concerned are
legally married to someone else or are in another de facto
relationship.

This definition is unusual in that there is no
reference to exclusivity, usually a factor in establishing a de
facto relationship, and there is also no reference to the factor of
a sexual relationship. To some extent this may be implied in the
reference to having a relationship as a couple (proposed
subclause 11(2)). In family law a reference to living as a
couple is usually determined by looking at a composite picture ,
usually encompassing some reference to a sexual
relationship.[12]
Relevant factors to be considered include:

the duration of the relationship;

the nature and extent of common residence;

whether or not a sexual relationship exists;

the degree of financial interdependence or support between the
parties;

The definitions used in the Bill which allow,
for example, someone to be married to one individual yet qualify as
the de facto partner of a third party are thus unusual from a
broader legal perspective qualifying as a de facto spouse generally
implies some exclusivity. The definition is, however, designed to
regulate the compellability of a witness evidence and the comments
that can be made when such evidence is not given. The definition
does not go to the broader law they simply stipulate the criteria
to be used in the application of these rules of evidence.

The question of which witnesses may be
compellable , i.e. legally required to give evidence, is subject to
other exceptions. Defendants are not themselves compellable (an
example of the privilege against self-incrimination). There has
been a tradition in English common law that the spouse is not
compellable (although a relatively recent tradition[14]).

The public policy issues behind the exemption
are indicated by the criteria to be used by the decision maker when
determining whether to treat a witness as compellable. The decision
maker is required to prioritise the desirability of the evidence
being given against

a likelihood that harm would or might be caused
(whether directly or indirectly) to the person, or to the
relationship between the person and the defendant, if the person
gives the evidence [15]

The majority of the ALRC in its 1985 Report
offered a further justification, being:

The undesirability that the procedures for enforcing the
criminal law should be allowed to disrupt marital and family
relationships to a greater extent than the interests of the
community really require.

The undesirability that the community should make unduly harsh
demands on its members by compelling them, where the general
interest does not require it, to give evidence that will bring
punishments upon those they love, or betray their confidences, or
entail economic or social hardships.[16]

They also pointed out that the consequences of
steadfast refusals to give evidence are difficult for a tribunal to
deal with.[17]
Finally they argued that there were dangers in expanding the
categories of those who can seek an exemption, both in terms of the
procedural/court costs involved in determining such applications
and because, they said, a too broadly based exemption would
jeopardise an unacceptable amount of relevant evidence.

In general a prosecutor must not comment on
the options taken under section 18,[18] however section 20 allows various
comments to be made in the case of indictable offences. In such a
case the judge or any party (other than the prosecutor) may comment
on a decision taken by a defendant s spouse, de facto
partner (as proposed), parent or child not to give
evidence. The general principle remains that the comment must not
suggest that the decision to not give evidence showed guilt
(although another defendant to the proceeding may make such a
comment[19]).

Item 10 replaces existing
subsection 29(2), implementing Recommendation 5-1 of the Report.
Currently, a party must apply to the court for a witness to be
allowed to give evidence in narrative form.
Proposedsubsection 29(2) will
allow the court on its own motion or on application, direct that a
witness give evidence wholly or partly in narrative form, rather
than question and answer format. The consequence of this amendment
is that the court will have more flexibility in receiving the best
possible evidence. Witnesses such as children and people with an
intellectual disability are likely to be assisted by this increased
flexibility.

Item 13 will repeal existing
section 41. The substituted section 41 will
describe the types of questions that must be disallowed.

The changes that affect improper questioning
implement Recommendation 5-2 of the Report and seeks to give
greater protection to vulnerable witnesses where questioning can be
harassing, intimidating, offensive, humiliating or repetitive. It
also expands the type of prohibited questions to those which have
no basis other than a stereotype. Proposed subsection
41(1) defines these parameters of a disallowable
question.

Proposed subsection 41(2)
will allow the court to take into account, for the purposes of
subsection (1):

any relevant condition or characteristic of the witness which
the court is, or is made, aware, including age, education, ethnic
and cultural background, gender, language background and skills,
level of maturity and understanding and personality; and

any mental, intellectual or physical disability of which the
court is, or is made, aware and to which the witness is, or appears
to be, subject; and

the context in which the question is put, including, the nature
of the proceeding; and, in a criminal proceeding the nature of the
offence to which the proceeding relates; and, the relationship (if
any) between the witness and any other party to the
proceeding.

Proposed subsections 41(3) and
(4) note that a question is not disallowable merely
because it challenges the truthfulness of the witness or the
consistency or accuracy of any statement made by the witness; or
the question requires the witness to discuss a subject that could
be considered distasteful to, or private by, the witness. An
objection can be made that the question is a disallowable question.
However the court must consider disallowability even if no
objection is raised (subsection 41(5)).

Proposed section 41 applies
to both civil and criminal proceedings. Proposed subsection
41(6) provides that a failure by the court to disallow a
question under this section will not affect the admissibility of
the witness s answer. A Note at the end of the section provides a
cross reference to section 195 which prohibits the publication of
disallowed questions unless the express permission of the court has
been obtained.

Section 50 concerns proof of voluminous or
complex documents. Item 14 repeals and replaces
existing subsection 50(1) implementing Recommendation 6-1 of the
Report. Its effect is that applications to rely on summary
documents could be made during a hearing. Under the
existing provision applications must be made before a
hearing commences.

Items 15 and
16 are technical amendments to the wording in the
flow chart and headings at the beginning of Chapter 3. They
implement Recommendation 16-1 and reflect that Part 3.11 contains
both discretionary and mandatory exclusions of evidence.

Part 3.2 of the Act establishes the hearsay
rule which excludes evidence of a previous representation in
certain circumstances, subject to exceptions created in the rest of
the Part. The term representation is defined to include both
statements and conduct and can be express or implied, as well as
unintended and uncommunicated. Previous representations means
representations made otherwise than in the course of giving
evidence in the proceedings. This means that, for example, you can
not give evidence about what someone else said in a
way[MB1] that suggests what was said was
true. If it is simply evidence that has been heard its repetition
or recounting cannot be taken to make it reliable.

The rationale for an exclusionary rule for hearsay evidence is
that:

out of court statements are usually not on oath

there is usually an absence of testing by
cross-examination

the evidence might not be the best evidence

there are dangers of inaccuracy in repetition

there is a risk of fabrication

to admit hearsay evidence can add to the time and cost of
litigation and

to admit hearsay evidence can unfairly catch the opposing party
by surprise.[20]

The significance of
intention in section 59

Section 59 provides the general exclusionary
hearsay rule:

Evidence of a previous representation made by a
person is not admissible to prove the existence of a fact that the
person intended to assert by the
representation.

The Commissions in their Report considered in
some detail the distinction between intended and unintended
assertions and noted the difficulties introduced by the courts in
interpreting this provision. In particular, they noted that the
interpretative difficulties in R v Hannes[21] with the
broad reading by Spigelman CJ of the New South Wales Court of
Criminal Appeal which would result in making unintended implied
assertions subject to the hearsay rule something which the ALRC
1985 Report argued against on the basis that it would require that
evidence be sought to prove the state of the mind of a relevant
person.[22] The
ALRC had argued that this would result in trials being disrupted
and much evidence excluded.

Items 17 and
18 propose amendments to section 59 so as to
clarify the meaning of intention in section 59. The new provision
will provide that evidence of a previous representation is not
admissible to prove the existence of a fact that it can be
reasonably supposed that the person intended to assert by
the representation. In deciding whether it can be reasonably
supposed the person intended to assert a particular fact,
the court may have regard to the circumstances in which the
representation was made.

The significance of this test is that it is
external to the person making the representation. In other words,
the court is not required to investigate into the subjective
mindset of the representor proof of a subjective state of mind is
very difficult and made all the more so where the maker of the
representation is not called to give evidence.

Item 21 is a consequential
amendment resulting from the amendments to section 59 in items 17
and 18.

As stated above, the general hearsay rule is
set out section 59 and then exceptions to the rule follow in the
rest of the Part. Division 2 creates exceptions for first-hand
hearsay, with different rules in civil and criminal proceedings and
depending on whether the maker of the representation is available
to testify. Other exceptions are created in other Parts of the Act
(for example, Part 3.4 Admissions). Division 3 creates exceptions
for second hand and more remote hearsay.

The difference between first hand and more
remote hearsay

Central to an understanding of the hearsay
rule and its exceptions is the distinction between first hand
hearsay and more remote hearsay. Whether the evidence is first hand
or more remote hearsay is often crucial in deciding whether any of
the exceptions apply. First hand hearsay is where the maker has
first hand knowledge of the fact, based on something that the
person saw, heard or otherwise perceived.

The Act draws a distinction between first-hand
and more remote hearsay for reasons to do with the quality of the
evidence. The view was taken by the ALRC in its first inquiry that
more remote hearsay is generally so unreliable that it should be
inadmissible except where there are some guarantees of reliability.
However, quality aside, it was also observed that what is the best
available evidence may depend upon balancing the importance and
quality of evidence against the difficulty of producing it.[23]

This background is important in understanding
the provisions in the Bill that amend the hearsay rule
exceptions.

The hearsay rule does not apply to evidence of
a previous representation that is admitted because it is relevant
for a purpose other than proof of the fact intended to be asserted
by the representation.

This provision received extensive
consideration by the Commissions in the Report. The particular
concern that was raised resulted from the High Court s decision in
Leev The Queen[24]. The Report states that as
a result of Leev The Queen there is now a view
that section 60 does not apply to hearsay evidence more remote than
first-hand hearsay and this in turn raises serious doubt as to the
application of section 60 to expert opinion evidence. The Report
states:

If Lee is read as deciding that section
60 has no application to second-hand and more remote hearsay, it
follows that evidence of accumulated knowledge, recorded data, and
other factual material commonly relied upon by experts will be
inadmissible as evidence of the truth of the facts asserted in the
material. Yet a central reason for enacting section 60 was to
continue to allow such evidence to be admissible as evidence of the
truth of the facts asserted, even though the evidences is
hearsay.[25]

The Commissions view is that section 60 should
be amended to confirm that section 60 applies to relevant
first-hand and more remote hearsay, subject only to the mandatory
and discretionary exclusions in Part 3.11. Item 22
implements Recommendation 7-2. and inserts new subsection 60(2) and
(3). Proposed subsection 60(2) clarifies that
section 60 operates to permit evidence admitted for a non-hearsay
purpose to be used to prove the facts asserted in the
representation, whether the evidence is first-hand or more remote
hearsay. That is, whether or not the person had first hand
knowledge based on something seen, heard or otherwise perceived.
New subsection 60(3) inserts a safeguard to ensure
that evidence of admissions in criminal proceedings that is not
first hand is excluded from the scope of section 60.

Section 72 provides that the hearsay rule does
not apply to evidence of a representation made by a person that was
a contemporaneous representation about the person s health,
feelings, sensations, intention, knowledge or state of mind. This
provision currently applies to both first hand and more remote
hearsay. Item 32 would re-enact this section as
new section 66A moving it from the Division
dealing with remote and second hand hearsay to the Division dealing
with first hand hearsay. The effect is that the exception would
only apply to first hand hearsay. This implements Recommendation
8-5.

Items 28-30 amend section 65.
This section provides an exception to the hearsay rule in certain
circumstances when a person is not available to give evidence.

The Report notes that questions have been
raised about the operation of section 65 in relation to previous
representations from persons who are complicit in the offence with
which an accused is charged, but who refuse to give evidence at
trial.[26] The
relevant parts of section 65 read:

(1) This section applies in a criminal
proceeding if a person who made a previous representation is not
available to give evidence about an asserted fact.

(2) The hearsay rule does not apply to evidence
of a previous representation that is given by a person who saw,
heard or otherwise perceived the representation being made, if the
representation was:

[ ]

(b) made when or shortly after the asserted
fact occurred and in circumstances that make it unlikely that the
representation is a fabrication; or

(c) made in circumstances that make it highly
probable that the representation is reliable, or

(d) against the interests of the person who
made it at the time it was made.

The assumption behind (d) is that where a
statement is against the interests of the party who made it, this
provides an assurance of reliability. However, the Commissions
argued that where the person who made the statement is an
accomplice or co-accused, this may not be the case. An accomplice
or co-accused may be motivated to downplay the extent of his or her
involvement in relevant events and to emphasise the culpability of
the other.

There is reason to suspect that an accomplice
or co-accused would be more inclined to take such a course where
(for example) they have immunity from prosecution. Where the
accomplice gains immunity from prosecution the reliability
safeguard of the representation being against self-interest no
longer applies.[27]

The Report therefore recommended that
paragraph 65(2)(d) be amended to require the representation to be
made against the interests of the person who made it at the time it
was made and in circumstances that make it likely that the
representation is reliable. The intention is to ensure that the
hearsay rule is not lifted where a statement against interest is
made in circumstances that would not suggest reliability.[28]

Item 30 implements this
recommendation and items 28 and
29 are consequential amendments arising from
it.

Section 66 provides exceptions to the hearsay
rule where, in a criminal proceeding, a person who made a previous
representation is available to give evidence about an asserted
fact. Such a person may give evidence where the occurrence of the
asserted fact was fresh in the memory of the person who made the
representation . The Report notes that the courts have had some
difficulty in interpreting the meaning of fresh in the memory
following on from the High Court s decision in Grahamv The Queen[29]. The Report also notes that
special difficulties with the fresh in the memory criterion often
arise in sexual offence cases and cases where identification and
recognition evidence is in issue. The Commissions concluded that
there is strong support for amendment of section 66 to clarify that
freshness may be determined by a wide range of factors.[30]Proposed
subsection 66(2) (item 31) clarifies that
freshness of the memory may be determined by not only factors to do
with time but also factors such as the nature of the event
concerned, and the age and health of the witness.

Section 71 of the Act provides an exception to
the hearsay rule for telecommunications. Item 33
repeals and replaces the section in order to allow for a broader
and more flexible definition of telecommunications. It replaces the
words a document recording a message that has been transmitted by
electronic mail or by a fax, telegram, lettergram or telex with a
document recording an electronic communication . Electronic
communication has the same meaning as it has in the Electronic
Transactions Act 1999 (item 86).

Item 34 introduces a new
provision (proposed section 72) which creates an
exception to the hearsay rule covering representations about the
existence or non-existence of the traditional laws and customs of
an Aboriginal and Torres Strait Islander group . This provision is
discussed in depth in the Report, but only a short commentary is
possible here.[31]

The problem of the interaction of the western
legal system with traditional Aboriginal and Torres Strait Islander
forms of knowledge and the appropriate form for the transmission of
this knowledge is eloquently summarised in the following
excerpt:

Perhaps the greatest clash between Aboriginal
and Anglo-Australian systems of knowledge is in relation to the
form knowledge takes. Oral traditions and history are usually the
basis of Aboriginal connection with land and, accordingly, are of
major importance to land claims and native title applications. As
well as the dreamings, genealogies, general historical stories and
land use information will be transmitted orally in most Aboriginal
communities. Yet the Anglo-Australian legal system is the most
prohibitively literate of institutions .[32]

A practical example of the problem is given in
the Commissions Report which discusses a case in which the Judge
concluded that evidence was inadmissible on the grounds that it was
hearsay. The evidence in question concerned the witnesses assertion
that a deceased person had said to her (regarding land the subject
of a native title claim) this is your grandmother s country
.[33] The judge
concluded that it was inappropriate to admit the witness statement
under the hearsay rules in the Evidence Act. The Commissions
conclude that it is appropriate to amend the applications of these
rules, partially in the light of amendments to the Native Title Act
in 1998, which introduced what could be called a presumption that,
when conducting native title proceedings the Federal Court was
bound by the rules of evidence (previously there were provisions
stating the Court was not bound by technicalities legal forms or
rules of evidence when dealing with native title cases. The Court
had a discretion to modify the rules, and could take account of
cultural and customary concerns, but not so as to prejudice unduly
any other party to the proceedings .[34]

The Report documents that difficulties with
the cultural differences are evident not only in native title cases
but also with respect to criminal law defences, sentencing and
family law (inter alia). These various issues have also motivated
the amendments proposed in items 35 and 36 which
introduce an exception to the opinion rule which will allow members
of an Aboriginal and Torres Strait Islander group to give opinion
evidence about the existence or non-existence, or the content of,
the traditional laws and customs of the group .

Item 38 changes the
admissibility of expert evidence about child development and
behaviour. The changes will allow that expert opinion can be used
by a court to inform itself about the competence of a witness and
will also provide a new exception to the credibility rule where a
person has specialised knowledge based on the person s training,
study or experience.

The Human Rights and Equal Opportunity
Commission and the ALRC, (1997 Report, Seen and Heard: Priority
for Children in the Legal Process) have previously recommended
changes to the admission of expert opinion evidence. The report
said that expert opinion evidence on issues affecting the
assessment of child witness capability should be admissible in any
civil or criminal proceeding in which abuse of that child is
alleged. In its support of the proposed changes, the New South
Wales Director of Public Prosecutions noted the need to overcome
stereotypical perceptions of children and the need to rectify gaps
and misunderstandings in allegedly common or general knowledge
about child development and behaviour.[35]

Section 79 currently provides an exception to
the opinion rule where the opinion is based on specialised
knowledge based on the person s training, study or
experience.[36] The
Commissions Report noted that Australian courts continue to
demonstrate a reluctance to admit evidence of children s
development and behaviour under section 79.

The amendment to section 79 will put beyond
doubt that this particular type of expert opinion evidence is
admissible. The proposed section 79 is modelled on
the Tasmanian Evidence Act 2001 to overcome any reluctance
in accepting that child development and behaviour is a subject of
specialised knowledge and that expert opinion evidence is
admissible on the topic.

The Commissions noted that there is a risk of
admitting this category of evidence.[37] If a jury is told that the children
who are abused behave in a particular way and the complainant has
behaved in this way, then the likely conclusion for the jury is
that the complainant is telling the truth about being the victim of
sexual abuse. The report concluded that potential misuse of this
sort of expert opinion can be adequately dealt with by provisions
in Part 3.11 which allow judicial discretion to exclude certain
evidence.

Item 38 adds, at the end of
section 79, proposed subsection79(2), to avoid doubt and without limitation to
subsection (1), a reference in that subsection to specialised
knowledge includes a reference to specialised knowledge of child
development and child behaviour (including specialised knowledge of
the impact of sexual abuse on children and their development and
behaviour during and following the abuse).

Proposed subsection (2)(b)
addresses the status of opinion evidence of the person with
specialised knowledge, providing that the opinion is admissible if
it relates to the development and behaviour of children generally;
or, the development and behaviour of children who have been victims
of sexual offences, or offences similar to sexual offences.

These amendments will have an impact on the
use of the credibility rule as well as the opinion rule.
Proposed section 108C provides a new exception to
the credibility rule, mirroring the amendment of proposed
section 79(2) relating to the opinion rule.

The purpose of subsection 85(2) is to ensure
that only reliable admissions are allowed into evidence, by
requiring the prosecution to demonstrate that the particular
admission was made in circumstances which make it unlikely that its
truth was adversely affected.

Subsection 85(1) is intended to limit the
scope of the section without creating an overly high hurdle to the
application of section 85(2).[38]Item 40 amends subsection 85(1)
of the Act to ensure that evidence of admissions in criminal
proceedings that is not first-hand is excluded from the ambit of
section 60.[39] The
item will repeal and replace existing subsection
85(1). The words in the course of official questioning in
paragraph 85(1)(a) are replaced with to or in the presence of, an
investigating official who at that time was performing functions in
connection with the investigation of the commission, or possible
commission, of an offence . This clarification will enhance the
reliability of evidence by broadening the period where the
questioning might take place. The change implements Recommendation
10-1 of the Report and developments in case law, where the High
Court held that the existing provision in the course of official
questioning marks out a period of time running from when
questioning commenced to when it ceased. [40]

The amendment will also require that the
reliability of an admission made by a defendant is tested where
that admission is made to or in the presence of an investigating
official performing functions in connection with the investigation
or as a result of an act of another person capable of influencing
the decision whether to prosecute.

Proposed subsection 85(1)
varies slightly to the Commissions recommendation.[41] Following a decision in the
Victorian Supreme Court in 2006 that suggested covert operatives
may be included in the scope of section 85, the words as a result
of an act of another person who was, and who the defendant knew or
reasonably believed to be capable of influencing the decision to
prosecute have been added to paragraph
85(1)(b).[42]

Further, to avoid doubt, the term official
questioning has been removed from other parts of the Act.
Items 41, 65, 70 and 89 remove the term.

Items 42 and 43 of the Bill
propose changes to the tendency and coincidence rules. Item
42 will make minor changes to section 97(1), to implement
Recommendation 11-3 that highlights a drafting issue.

Item 43 will reduce the
threshold for admitting coincidence evidence to require
consideration of similarities in events or circumstances, rather
than the existing threshold that there are similarities in
events or circumstances. Section 98 is to be
repealed and replaced with a general test for the coincidence rule.
The Commissions considered that the existing test raises a high
threshold and could exclude highly probative evidence from the
ambit of the provision. The new provision will apply where the
party adducing the evidence relies on any similarities in the
events or the circumstances in which they occurred,
or any similarities in both the events and circumstances in
which they occurred.

The requirement to give reasonable notice in
writing to other parties is retained. Also, the requirement for the
court to be satisfied that the evidence will have significant
probative value is retained in paragraph
98(1)(b).

Item 45 proposes to amend the
credibility rule in order to clarify its interpretation.
Item 45 proposes to amend the credibility rule to
ensure that evidence which is relevant both to credibility and a
fact in issue, but not admissible for the latter purpose, is
subject to the same rules as other credibility evidence.
Item 45 inserts new Divisions 1 and 2.
Proposed subsection 101A will provide a definition
of credibility evidence and proposed section 102
will restate the credibility rule.

The need to amend the section follows the High
Court s decision in Adamv The Queen (2001),
which Odgers summarises as:

In Adam v The Queen (2001) 207 CLR 96
at [34-35] the majority of the High Court held that s102 should be
interpreted literally, so that if evidence is relevant in a
proceeding in some way other than to a witness s credibility, it is
not caught by s102. It will not be caught even if the evidence is
inadmissible for that other use. If section 102 does not apply, the
evidence will be admissible as bearing on the witness s credibility
(pursuant to s 56), subject to the court s general discretion to
exclude evidence. The joint judgement rejected an argument that s
102 should not be read as dealing only with evidence the sole
relevance of which is its bearing upon the credibility of
a witness [and] should be read as applying to evidence which is not
admissible on any basis other than the credibility of a
witness .[43]

It is quite unsatisfactory to leave these
issues to judicial discretion. There will be greater uncertainty in
the preparation of cases, greater debate and uncertainty in the
conduct of trials, greater variation in outcome and the likelihood
of many appeals against conviction. To overcome the decision in
Adam, s 102 should be amended.[44]

The Commissions recommended that amendments be
made to ensure that the provisions of Part 3.7 (Credibility) of the
Act apply to evidence relevant only to credibility; and relevant to
credibility and relevant for some other purpose, but not admissible
or capable of being used for that other purpose because of a
provision of Parts 3.2 to 3.6 inclusive (Hearsay, Opinion,
Admissions, Evidence of judgments and convictions, Tendency and
coincidence). The new section 102 restates the
credibility rule in a more simple form to enable the section to
operate as it was originally intended. Item 45
also adds a note to section 101A to clarify that section 60
(exception to the hearsay rule) and 77 (exception to the opinion
rule) are not relevant in the determination of admissibility for
another purposes under section 101A because they cannot apply to
evidence which has not yet been admitted.

This is a fairly significant change to the
credibility rule but it is unlikely to be especially controversial
or problematic. The Commissions Report notes:

The concept of when the credibility rules
should apply is well understood by practitioners, but difficult to
express in legislation. While ideally the wording of the amended
provisions would be simpler, the somewhat cumbersome drafting is
necessary to meet the scrutiny of literal interpretation which it
will inevitably meet. In day-to-day practice, however, once
understood, it should not require laboured consideration. In
practice, it will be clear that certain evidence is either solely
relevant to credibility or is relevant to credibility because it
has been determined or ceded not to be admissible for another
purpose under the preceding provisions of the Act. [45]

Item 48 51 are consequential
amendments arising out of the amendments in item 45.

Subsection 103(1) provides that the
credibility rule does not apply to evidence adduced in
cross-examination of a witness if the evidence has substantial
probative value. Probative value is defined to mean:

The extent to which the evidence could
rationally affect the assessment of the probability of the
existence of a fact in issue.

Item 46 amends this provision
by replacing the words has substantial probative value with could
substantially affect the assessment of the credibility of the
witness . It implements Recommendation 12-2. The rationale for the
change is that the proposed wording is more accurate and draws on
the construction adopted by the Court of Criminal Appeal in R v
RPS which has allowed the courts to give meaning to the
section.[46]Item 47 is consequential flowing from the
amendment to section 103.

Section 106 provides that the credibility rule
does not apply to rebutting a witness s denials by other evidence
in specific circumstances (for example where evidence tends to
prove the witness bias or motive to be untruthful). The Report
notes that these specific circumstances or exceptions may be too
limiting and may prevent the admission of important evidence. It
recommended (12.5) that section 106 be amended to create a broader
basis on which to admit evidence. Item 52
implements this recommendation. It repeals and replaces
section 106 making two key changes. Firstly the court may
grant leave to adduce evidence relevant to credibility outside the
current categories. Secondly evidence relevant to credibility may
be led not only where the witness has denied the substance of the
evidence in cross-examination, but also where he or she did not
agree to it.

Items 53 56 make amendments
restructuring the provisions in a new Division 3
that relates to credibility of persons who are not witnesses. They
implement Recommendations 12-1, 12-3, 12-6. Item
54 repeals and replaces subsection
108A(1) to reflect the new definition of credibility and
the changes to section 102 at item 45.

The Report did note that there are some
concerns about the proposed exception to the credibility rule.
However, the Commissions believe that the uniform Evidence Acts
should provide an exception for expert testimony to prevent
injustice to the parties and ensure a proper factual basis for the
evaluation of the credibility of witnesses. The Report notes that
the clarification of the admissibility of expert evidence relating
to the behaviour and development of children is justified on the
basis of a demonstrated reluctance of some judicial officers to
accept that this is a relevant field of expertise and a matter
beyond the common knowledge of the tribunal of fact.
Proposed section 108C does not connote that undue
prominence should be given to this evidence, and should not be seen
as taking away from the generality of the provision.

The amendments will also enable evidence to be
adduced with the leave of the court to rebut denials
(proposed section 106) and non-admissions in
cross-examination (proposed subsection
104(4)).

The principles which apply to privilege can
apply both within and outside of particular court proceedings.
Privileges offer certain exemptions from giving evidence and they
attach to certain forms of evidence (by analogy a privilege is
similar in form to the non-compellability offered to individuals,
e.g. spouses, but privileges are limited to more specific
evidence).

The client legal privilege allows a lawyer s
client to refuse giving evidence on the grounds that it is
information falling within that client/lawyer relationship. The
Report explains that this privilege is premised on the principle
that it is desirable for the administration of justice for clients
to make full disclosure to their legal representatives so they can
receive fully informed legal advice. [47]

The changes proposed by item
62 would introduce new provisions which restrict the
operation of the client legal privilege where the privilege has
already been expressly or impliedly waived.

Proposed subsections (2) and
(3) are designed to exclude information from the client
legal privilege when the behaviour of the client or party has
rendered the protection redundant or irrelevant. So, for instance,
if a client or party, expressly or by implication, consents to the
disclosure of the substance of the evidence then the privilege is
not available (unless the disclosure was to another lawyer or,
effectively, to public officials within the Australian legal system
(proposed subsection 4)).

This is one of the well established privileges
and the provisions are found in section 128 of the Evidence Act.
The privilege allows a witness to object to giving evidence if it
would go to establishing that they have committed an offence or are
liable to a civil penalty. The court must decide whether there are
reasonable grounds for the objection. If the court decides there
are reasonable grounds for the objection it must tell the witness
they can refrain from giving evidence. The court is, however, able
to insist that the witness give the evidence if the interests of
justice require it (although only if the evidence doesn t go to
show guilt of an offence or liability for a civil penalty in a
foreign country). The court can also offer the witness a choice
about whether to give the evidence and can explain that it can
provide a certificate regarding that evidence which would ensure
that in further proceedings the certified evidence cannot be used
against the witness.

The changes being made to this part of the
legislation are largely technical so, for instance, the evidence to
which the objections can be made would be not only particular
evidence but also evidence on a particular matter (proposed
sub-section 128(1)). This change may allow for a claim of
privilege to be dealt with more systematically. Also the use for
which a certificate applies has been clarified (in a more recent
case which had to be re-heard there was a dispute about whether the
certificate should apply because the first case was not legally
effective[48]).
Proposed subsections 128(7) and 128(8) apply to
protect the evidence, even when challenged, however
proposed subsection 128(9) stipulates that a
retrial or a trial arising out of the same facts does not provide
the same level of protection.

Item 63 also introduces a
new section 128A which extends the privilege to
certain forms of search or freezing orders. The Report recommended
that the privilege against self-incrimination should not apply to
these orders, however the Bill proposes to adopt an alternative
approach recommended by the VLRC. This approach involves providing
the evidence to the court in a sealed envelope so that the court
can make a determination whether there are reasonable grounds for
the objection (proposed subsection 128A(4)). Once
again there are provision for the court to determine whether the
interest of justice require the information to be disclosed
(proposed subsection 128A(6)) and an order that
the information must be disclosed can only be made if it doesn t
tend to prove that an offence has been committed under a law of a
foreign country (proposed subsection
128A(6)(b)).

Item 68 deals with electronic
communications. Existing sections 160-163 apply presumptions
relating to the sending (or transmission) and receiving of postal
articles, telexes, lettergrams, telegrams and letters sent by
Commonwealth agencies. Item 68 repeals and
replaces section 161 in order to also provide a
presumption in relation to electronic communications. It includes
presumptions as to the source and destination of the
communications. This implements Recommendation 6-3.

Item 78 will insert a
new section 192A to make it clear that the court
has the power to make an advance ruling or make an advance finding
in relation to any evidentiary issue. Proposed section
192A will allow the court to give a ruling make a finding
in relation to the question before the evidence is adduced in the
proceedings where a question is about the admissibility or use of
evidence proposed to be adduced; or the operation of a provision of
the Act or another law in relation to evidence proposed to be
adduced; or the giving of leave, permission or direction under
section 192.

The Evidence Act is currently silent on the
issue of advance rulings. The High Court has held that it may be
appropriate to give an advance ruling on a matter in respect of
which the uniform Evidence Acts requires leave, permission or
direction to be sought, as section 192 gives the court the
discretion to give such leave, permission or direction on such
terms as the court thinks fit . However, it held that such a power
is limited. Gaudron J said:

Although it may be appropriate in some cases to
give an advance ruling as to a matter in respect of which the
Evidence Act requires leave, permission or direction, it
is to be remembered that counsel ultimately bears the
responsibility of deciding how the prosecution and defence cases
will be run. Thus, it is that advance rulings , even if permitted
may give rise to a risk that the trial judge will be seen as other
than impartial. Particularly is that so in the case of advance
rulings that serve only to enable prosecuting or defence counsel to
make tactical decisions. If there is a risk that an advance ruling
will give rise to the appearance that the trial judge is other than
impartial, it should not be given.[49]

Advance rulings may serve the interests of
justice by adding to the overall efficiency of the trial.[50] Crispin J
articulated the benefits of advance rulings as follows:

There are some cases in which substantial
inconvenience, expense and perhaps even unfairness might ensue if
there were to be no indication as to the likely exercise of
discretion. Such an approach may require counsel to prepare for
trial and make tactical decisions without knowing whether a
substantial body of evidence is likely tobe admitted, the Crown may
be unable to make any sensible assessment as to the prospects of
obtaining a conviction, counsel for the accused may be unable to
offer any sensible advice as to the appropriate plea and the
opening addresses may have to omit any explanation of the relevance
of evidence subsequently admitted. Furthermore, if the trial judge
subsequently rules that the evidence should be excluded in the case
of one accused but not the other, it may be necessary to then
discharge the jury and order that the accused be tried separately.
That would involve a substantial waste of time and money, create
unnecessary risks of prejudice to both the Crown and the accused
and leave jurors with the feeling that their time had been
wasted.[51]

Proposed section 192A
provides that

Where a question arises in any proceeding,
being a question about:

(a) the admissibility or use
of evidence proposed to be adduced; or

(b) the operation of a provision of
this Act or another law in relation to evidence proposed to be
adduced; or

(c) the giving of leave,
permission or direction under section 192;

the court may, if it considers it to be
appropriate to do so, give a ruling or make a finding in relation
to the question before the evidence is adduced in the
proceedings.

The amendments proposed at items 11, 12,
58, 66, 67, 76 and 77 replace the terms lawyer with
Australian legal practitioner or legal counsel in various sections
of the Act. Lawyer is defined in the Dictionary as a barrister or
solicitor. Items 80 and 88 would
insert definitions of the terms Australian legal practitioner and
legal counsel into the Dictionary. The Explanatory Memorandum
states that these more specific definitions are consistent with
model National Legal Profession laws. The effect of the amendments
is to ensure that the sections will refer to lawyers with a valid
practising certificate, as well as legal counsel , that is lawyers
who do not have a current practising certificate but are otherwise
permitted to practise in that jurisdiction.[52]Items 12 and
77 are similar amendments replacing the term
lawyer with Australian legal practitioner or legal counsel or
prosecutor. Item 91 incorporates a new definition
of prosecutor into the Dictionary.

Items 3 - 5 make necessary
changes to sections of the Evidence Act that are now
outdated. Item 3 updates references to Part III,
Part IIIA of the Crimes Act 1900 (ACT) in paragraph 19(a)
of the Evidence Act. Item 4 updates the
references in paragraph 19(b) of the Act to the Children s
Services Act 1986 (ACT) which has been repealed and replaced
by the Children and Young People Act 1999 (ACT).
Item 5 updates the reference to the Domestic
Violence Act 1986 (ACT). Paragraph 19(c) will be amended to
refer to the Domestic Violence and Protection Orders Act
2001 (ACT).

Items 6-9 repeal sections 25,
105, subsections 108(2) and 110(4) of the Act respectively. Those
sections are now obsolete as the right of a defendant to make an
unsworn statement in a criminal trial no longer exists under
Australian law. These provisions were originally included in the
Evidence Act because the right to adduce evidence in these
circumstances continued to exist in Norfolk Island. They have now
been abolished by the Evidence Act 2004 (NI) and
consequently can be repealed in the Evidence Act.

Items 10 and
11 are consequential amendments arising out of
item 86 of Schedule 1 which introduces the broader concept of
electronic communications rather than telecommunications . This
relates to Recommendations 6-2 and 6-3 of the Report.

Schedule 3 amends the Amendments
Incorporation Act 1905, its main purpose being to set up an
authorised database of Commonwealth legislation and to allow courts
to rely on the electronic versions of Commonwealth legislation. As
noted earlier, this Schedule is unrelated to the main purpose of
the Bill and it could be asked why it has been appended to a Bill
relating to evidence law. Neither the Explanatory Memorandum nor
the Second Reading Speech provide any explanation for this.

Item 1 repeals the long title
of the Act and renames it An Act relating to the publication of
Acts in printed and electronic form . Item 2 repeals section 1 and
substitutes two new Parts which provide for a new short title and
define a number of new terms. The new title of the Act is to be the
Acts Publication Act 1905 (proposed section
1).

Items 3 and
4 would make amendments to sections 2 and 3 that
deal with the publishing of reprints of Act. They add a requirement
that reprints must record amendments made by legislative
instruments.

Item 5 proposes two new
Parts. Part 3 sets out a new regime for the electronic publication
of Acts. Proposed section 4 provides for the
establishment of an electronic database that is to be available to
the public. Proposed section 5 provides that Acts
in the database are authoritative and complete and accurate. Unless
the contrary is proven, they can therefore be relied on as a
correct statement of the law, including by the courts, Part 4
provides a regulation making power.

The long delay in commencement of Schedule 3
was noted at the beginning of the Digest. As discussed above, the
reasons given for the delay is the time needed to develop the
database. Concerns have been expressed as to the adequacy of the
existing database arrangements.[53] It is to be hoped these concerns are addressed
within the twelve months.

The bulk of the changes made in this Bill are
technical. They predominantly broaden the scope of admissible
evidence and are designed to allow the flow of evidence to operate
with greater freedom. There is also a focus on witness
protection.

Provisions which could cause some controversy
concern the definition of de facto partner with its broad
inclusions. While the inclusion of same-sex partners may not be
controversial, given that most of the parties represented in
Parliament support an anti-discrimination policy, the departure
from the standard definitions of a de facto couple may be. In
particular the inclusion of possibly multiple de facto couples and
married partners within the one umbrella is unusual. In a sense
this is largely a matter of drafting, the provisions simply
defining who is covered by the exemption to the principle of
compellability. But in another sense this broadening of the more
standard reference may be seen as raising further issues.

As discussed above, Justice Kirby had
advocated that either the exception should be confined to those in
a married relationship, or, if an expansion of the exemptions to
compellability was to be made, it should be made to cover intimate
personal relationships as a generic criteria.[54] The decision to avoid the
approach advocated by Justice Kirby may have more to do with
restricting the categories of people exempted than the suitability
of the wording needed to cover multiple relationships. This might
have been done more clearly by referring to intimate personal
relationships or even to an interdependent relationship or some
other phrase not so connected to the traditional concept of the de
facto couple.

Finally it is to be noted that reforms in the
field of evidence law seem to take some time to move into
legislative form. This is due, in part, to the desirability of
promoting uniform evidence law which necessitates consultations
with different jurisdictions. Some of the changes address issues
raised by case law from some time ago,[55] but, having cleared the hurdle of a
tripartite Report and clearance by SCAG, it is not to be wondered
at that the reforms have taken some time to be presented to the
Parliament.

[1]. The Senate Scrutiny of Bills Committee in its Alert
Digest has commented on this delayed commencement pointing out that
where the period is longer than six months the Committee expects
the Explanatory Memorandum to the Bill will provide an explanation.
In this case, the Explanatory Memorandum (page 3) points out that
the amendments proposed in Schedule 3 provide for certain printed
and electronic versions of Acts, (including compilations of Acts)
to be taken to be an accurate record of those Acts, unless the
contrary is proven. It goes on to observe (page 4) that the delay
in commencement of up to 12 months after Assent is to ensure that
the Office of Legislative Drafting and Publishing has sufficient
time to prepare for electronic compilations of Acts to be included
in the Acts database. The Alert Digest concludes: In the
circumstances, the Committee makes no further comment on this
provision. Senate Scrutiny of Bills Committee, Alert
Digest, 4 June 2008.

[3]. For further detail see ALRC et al, Uniform evidence
law: report, ALRC 102, December 2005, paragraphs 1.11 1.13. In
those states and territories that have not adopted the uniform
legislation, the law of evidence is a mixture of statute and common
law, together with applicable rules of court.

[13]. D v McA (1986) 11 Fam LR 214 ; DFC
95-030. Other statutory definitions also refer to the existence of
a sexual relationship and the exclusive nature of the relationship,
for instance the Social Security Act 1991, section 4
specifies that to determine whether someone is a member of a couple
regard should be had to the financial aspects of the relationship,
the nature of the household and the social aspects of the
relationship and any sexual relationship between the people and the
nature of the people s commitment to each other. (See also the
Veteran s Entitlements Act 1986, section 11A.)

[14]. According to the Australian Law Reform
Commission (Report No. 26, Interim Evidence) the matter
was conclusively determined by the House of Lords in Hoskyn v
Commissioner of Police [1978] 2 All ER 36.

[15]. Subsection 21(6) of the Evidence Act.
Subsection 21(7) goes on to stipulate various considerations when
resolving the question addressed by 21(6), such as the nature and
gravity of the offence and the availability of other sources of
evidence. It should be noted that the exemption offered to
compellability by section 18 does not apply in certain criminal
proceedings, particularly to do with cases involving children or
domestic violence (section 19 of the Evidence Act).

[16]. ALRC 26, p. 291. Kirby J, who was the primary
Commissioner working on this Report, was in dissent on this issue,
advocating either that the status quo remain (an exemption only for
marital relationships) or that the category be broadened out to
intimate personal relationships , with a discretion residing in a
judge to decide the matter. He argued that the gradual admission of
new categories was likely to discriminate arbitrarily or unfairly
against the other categories not yet acknowledged.

[17]. ALRC 26, p. 290 who comment that while the law
might be that a witness must give evidence it is commonly
impossible to predict what will happen if a proposed witness does
not wish to give evidence It is uncertain how far the judge will be
prepared to go in applying pressure to the witness .

[22]. Spigelman CJ reasoned that: an implied assertion
of a fact necessarily assumed in an intended express assertion, may
be said to be contained within that intention. For much the same
reasons, it is often said that a person intends the natural
consequences of his or her acts. R v Hannes (2000) 158 FLR
359, [357]. For a fuller description of the meaning of intention
and Hannes the reader is referred to Uniform evidence, op.
cit., pp. 191 203.

[39] Section 60 is an exception to the hearsay rule.
The hearsay rule (section 59) does not apply to evidence of a
previous representation that is admitted because it is relevant for
a purpose other than proof of the fact intended to be asserted by
the representation. For further explanation of the operation of the
hearsay rule, see S. Odgers, op. cit., pp. 195 272.

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